Commonwealth v. Henry

470 A.2d 581, 323 Pa. Super. 260, 1983 Pa. Super. LEXIS 4535
CourtSuperior Court of Pennsylvania
DecidedDecember 23, 1983
DocketNo. 3023
StatusPublished
Cited by6 cases

This text of 470 A.2d 581 (Commonwealth v. Henry) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Henry, 470 A.2d 581, 323 Pa. Super. 260, 1983 Pa. Super. LEXIS 4535 (Pa. Ct. App. 1983).

Opinion

WIEAND, Judge:

Ronald Henry was tried nonjury and convicted of simple assault1 in connection with the stabbing of his brother. He was acquitted of related charges of possession of an instrument of crime,2 recklessly endangering another person,3 and aggravated assault.4 On direct appeal from the judgment of sentence, he contends (1) that there was insufficient evidence to convict him of simple assault; (2) that the trial court erred in denying his motion to dismiss for a violation of Pa.R.Crim.P. 1100; (3) that delay of the victim in reporting the alleged incident to the police resulted in prejudice to appellant requiring dismissal of the charge; and (4) that the trial court erred in failing to articulate specific reasons for the sentence imposed. These contentions have no merit; and, therefore, we affirm the judgment of sentence.

In determining the sufficiency of the evidence, “we view the entire record in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom favorable to the Commonwealth, determine whether there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Pronkoskie, 498 Pa. 245, 248, 445 A.2d 1203, [263]*2631204 (1982). See also: Commonwealth v. Davis, 308 Pa.Super. 204, 216, 454 A.2d 92, 98 (1982); Commonwealth v. Price, 306 Pa.Super. 507, 511, 452 A.2d 840, 842 (1982). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence.” Commonwealth v. Nunez, 312 Pa.Super. 584, 586, 459 A.2d 376, 377 (1983), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

The testimony of Tyrone Henry, appellant’s brother, was that on January 9, 1981, appellant had entered the bedroom where Tyrone was sleeping and repeatedly stabbed Tyrone in the back and leg with a twelve inch long cooking fork. Tyrone struggled with appellant and was able to escape. He went to a hospital where he received treatment and was admitted for one day. He told authorities at the hospital that he had been injured when he fell on a picket fence. He did this, he said, to protect his brother who was then on federal parole. On January 16, however, Tyrone apparently changed his mind, for he then filed a complaint with the police. Criminal charges against appellant followed.

Appellant contends that Tyrone’s prior inconsistent statement at the time of admission to the hospital rendered his trial testimony unworthy of belief. He also produced evidence that at the preliminary hearing Tyrone had identified the offending weapon as an ice pick. The rule of law applicable to testimonial inconsistencies was stated in Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981), as follows:

“If a witness has made inconsistent or contradictory statements they may be used to attack the witness’ credibility. Commonwealth v. Bean, 244 Pa.Super. 368, 372, 368 A.2d 765, 767 (1976); Commonwealth v. Lenker, 202 Pa.Super. 538, 541, 198 A.2d 347, 349 (1964); Commonwealth v. Bartell, 184 Pa.Super. 528, 537, 136 A.2d 166, 172 (1957). Prior inconsistent statements, however, do not render a witness incompetent or require that his [264]*264testimony be disbelieved. Id. It is true, of course, that a conviction cannot properly be sustained if it be based upon testimony of a witness which is so contradictory on the essential issues as to make the verdict obviously the result of conjecture or guess. Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976); Commonwealth v. Lenker, supra, 202 Pa.Super. at 542, 198 A.2d at 349; Commonwealth v. Bartell, supra, 184 Pa.Super, at 537, 136 A.2d at 172. However, the mere fact that there are some inconsistencies is not alone sufficient to destroy the Commonwealth’s case. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053-54 (1977); Commonwealth v. Bartell, supra, 184 Pa.Super. at 537-38, 136 A.2d at 172. It is the function of the trier of the facts, in this case the trial judge, to reconcile conflicting testimony; the mere existence of conflicts in the testimony does not mean that he is required to resort to speculation. Commonwealth v. Duncan, supra.”

Id., 290 Pa.Superior Ct. at 214, 434 A.2d at 719. See also: Commonwealth v. Galloway, 495 Pa. 535, 539-540, 434 A.2d 1220, 1222 (1981); Commonwealth v. Scarpino, 494 Pa. 421, 426, 431 A.2d 926, 928 (1981); Commonwealth v. Curry, 318 Pa.Super. 490, 494-95, 465 A.2d 660, 662 (1983).

In the instant case, the trial court found Tyrone’s testimony credible. This testimony was not internally inconsistent so as to render a verdict based thereon a matter of conjecture or guess. Tyrone explained that his inconsistent statement at the hospital was motivated by an ill-directed wish to protect his brother and that his error in identifying the weapon during the preliminary hearing was the product of confusion caused by desperation at the time of the attack. In determining the facts, moreover, the trial court could take into consideration the testimony of appellant who admitted that he had stabbed his brother. Appellant’s claim of self-defense, based on his assertion that Tyrone had threatened to hit him with a chair (this testimony was denied by Tyrone), was clearly for the trier of the facts. Under the totality of this evidence, the trial court [265]*265could properly find appellant guilty of simple assault, i.e., that he intentionally, knowingly or recklessly caused bodily injury to his brother.

Similarly, there is no merit in appellant’s argument that the trial court should have dismissed the charge because of a Commonwealth failure to try him within the time constraints of Pa.R.Crim.P. 1100. The relevant procedural history is not in dispute. The complaint was filed on January 16, 1981, creating a July 15 mechanical run date. On April 14, the public defender was permitted to withdraw from appellant’s case, and Ronald White, Esquire, was appointed new counsel. Because appellant was without counsel on that day, the scheduled trial was continued to June 26, 1981. On the latter date, trial was continued on a defense motion to August 17, 1981 because White was unavailable. On July 3, 1981, the Commonwealth filed a petition for an extension pursuant to Rule 1100(c). The petition cited the unavailability of defense counsel from June 26 to August 17 as excludable days and averred that it had been ready to proceed. On August 17, proceedings were again continued on motion of counsel for the defense because counsel was going on vacation.

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Bluebook (online)
470 A.2d 581, 323 Pa. Super. 260, 1983 Pa. Super. LEXIS 4535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-henry-pasuperct-1983.